Dear friends, Veterans, supporters of our military and our Veteran community, legal community, government officials, GAO, congressional leadership, news media folks, and Mr. President. I do hope everyone is well.

 

READ THE BELOW PLEASE!  It was just sent to me and it is an internal Memorandum from the Head of VA Procurement.  I know VetForce is gearing up some activity and I would hope that ALL Veterans both within and outside of business jump in and get involved. This is shameful!

 

"October 17, 2011

 

TO: All VA Acquisition and Procurement Officials/Personnel

SUBJ: Recent Government Accountability Office Decision Involving the Use of the Federal Supply Schedule Program vs. VA’s Veterans First Contracting Program

 

1. On January 7, 2010, VA implemented those portions of the Veterans Benefits, Health Care, and Information Technology Act of 2006, Sections 502 and 503 of Public Law 109-461 (the Act) providing opportunities for Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) and Veteran-Owned Small Businesses (VOSBs) to increase their federal contracting and subcontracting (74 Federal Register 64619 (December 8, 2009)). Under this final rule, commonly referred to in VA as the “Veterans First Contracting Program,” a VA contracting officer may restrict competition to contracting with SDVOSBs or VOSBs under certain conditions. Likewise, sole source contracts with SDVOSBs or VOSBs are permissible under certain conditions. This final rule implemented these special acquisition methods as a change to the VA Acquisition Regulation (VAAR). Therein, in response to public comments and to a comment from the General Services Administration as to the applicability of the VA’s new SDVOSB/VOSB set-aside program to acquisitions conducted pursuant to the Federal Supply Schedule, VA responded that the law and VA’s implementing regulations do not apply to FSS procurements

 

2. Nevertheless, the Government Accountability Office (GAO) issued a bid protest decision October 11, 2011, in the case of Aldevra, a SDVOSB, case number B-405271 and B-405524, which recommends VA take corrective action on two acquisitions conducted pursuant to FAR Subpart 8.4, Federal Supply Schedule. The corrective action would require VA to conduct market research to determine if two or more SDVOSBs could perform the work, and, if so, setting-aside the acquisition for SDVOSBs on the open market based on GAO’s interpretation of the VAAR, before VA could use the Federal Supply Schedules Program. VA is of the opinion GAO’s interpretation is flawed and legally incorrect.

 

3. The United States Supreme Court ruled in 1986 the Comptroller General is an officer of the Legislative Branch (see Bowsher v. Synar, 478 U.S. 714, 727-32), holding the Comptroller General is subject to the control of Congress and therefore may not exercise non-legislative power. Because GAO is part of the Legislative Branch, Executive Branch agencies are not bound by GAO's legal advice.

 

4. Therefore, VA determined this GAO recommendation, Aldevra, B-405271 and B-405524, dated October 11, 2011, shall not be followed. We expect this issue ultimately will be decided by the courts. Therefore, VA acquisition and procurement professionals are to continue using the Federal Supply Schedules Program, when necessary and appropriate. The GAO recommendation does not change how VA will acquire goods and services in support of its mission.

 

5. Please do not reply to this e-mail message. Questions regarding this matter should be directed to your respective District Counsel or head of contracting activity. Thank you.

 

Jan R. Frye

Deputy Assistant Secretary for

 Acquisition and Logistics"

 

You know folks, I sometimes wonder how certain things go on within our Government; activities that are clearly counter to prevailing Law. All of our small business groups have to advocate and advocate and continue to raise hell in order that clear mandate regarding small business programs is adhered to by certain folks within the Federal Government procurement community.

 

Sometimes it is through ignorance that mandate is not followed, but in other cases it is through pure arrogance and a sense of impunity that folks are allowed to continue to break the Law without any accountability. What in the hell is wrong here? God forbid, if a citizen or a military member breaks the Law...they are punished.

 

When I was younger I took some Law Enforcement courses in college, and in course I learned from a CID Officer (later to become a federal agent and play a significant part in exposing and taking down Soviet intelligence activity here at home), thata Crime is "any act or omission forbidden by Law for which there is a codified punishment!" With that said folks, what is the punishment for folks within the federal government that routinely go about their business by ignoring prevailing Law and through their leadership positions espouse policy and direction that is in fact, counter to clear mandate? Where is the accountability?  Are such people immune from accountability…can segments of government agencies operate as if they were a Law onto themselves?

 

Time for us Veterans in business to say “enough is enough,” with this faulty business practice being the norm at VA.  Veterans First is just that, Veterans First!  Instead of the VA Procurement Leadership now turning to the Courts to argue their point that FSS overrides Vets First, one would think that the leadership within the VA Procurement office would be doing all that is necessary to follow mandate under PL 109-461, as reiterated and upheld by recent GAO Rulings, and start supporting Veterans in business instead of trying to hurt us!  It is a shame, just a shame and a blemish on an otherwise proactive VA under its great leadership in General Shinseki, that this one part of the organization in particular could be allowed to perform counter to the Law and counter to the welfare of the Veterans it is entrusted to serve.  Shameful, just shameful and there must be accountability.  PLEASE read all of this e-mail and please forward it to your Congressional leaders and any and all commercial media that might be interested in looking into this matter in our behalf.   Thanks for your Service and Godspeed!

 

1) Public Law 109-46, Veterans Benefits, Health Care, and Information Technology Act of 2006 (attached) , signed on December 22, 2006, Title V, Sections 502 and 503. Section 503 in particular established a Priority for procurement within V.A. That Priority was Veterans First! If any Agency within the United States Government should demonstrate 100% support for our Veterans it is of course the V.A.  In addition to the mandate of Veterans First within PL 109-461, let us revisit the Spirit and Intent of PL 106-50, Title I, Section 101 Findings, subpar (5):   “The United States must provide additional assistance and support to veterans to better equip them to form and expand small business enterprises, thereby enabling them to realize the American dream that they fought to protect.” 

 

2) Department of VA Office of Acquisition and Material Management Information Letter (IL) of June 19, 2007 (attached).  This VA IL was disseminated through the VA.  As we Veterans waited for six months to see the implementing policy of PL 109-461, we were happy to see that implementation through this long awaited IL had materialized.  However…and here we go again fol;ks, another hurdle foe we Veterans in business…paragraph four of the IL stated: “4. Absent specific guidance in this IL, in addition to the Federal Acquisition Regulation (FAR) and the VA Acquisition Regulation (VAAR), existing acquisition ILs and policy guidance will continue to apply. Additionally, the provisions of FAR part 8, Required Sources of Supplies and Services, still apply. Close coordination with the Office of Small and Disadvantaged Business Utilization (OSDBU) is necessary in order to fulfill the intent of the law. In addition, a VAAR change is in process.  So, here the stage was set for Vets First NOT to be a reality, but rather, business as usual…Federal Supply Schedules (FSS) to trump all Veterans!  Shameful, shameful, shameful!

 

3) GAO Decision, Matter of Aldevra, File B-405271;B-405524, of October 11, 2011 (attached).  At last, after over four years of FSS trumping Vets First at VA, the GAO rules that VA MUST adhere to the Law, PL 109-461, and first go to Veterans prior to going to FSS or any other source.  We owe a great deal of gratitude to Aldevra for standing up to VA and submitting this Protest.

 

4)  GAO Decision, Powerhouse Design Architects & Engineers, Ltd. File: B-403174; B-403175; B-403176; B-403177; B-403633; B-403647; B-403648; B-403649

Date: October 7, 2010.  This morning, Hank Wilfong, a Veteran and a life-long small business advocate, sent in yet another GAO Ruling regarding the VA and its failure (or refusal), to use Vets First as required by the Law.  This document is also attached, and once again, the GAO has sustained the protest!

 

5)  A May 20, 2008, letter I sent to then VA Secretary Peake, to complain that the "Veterans Combat Wounded Call Center" contract went to a large business rather than a Veteran Owned Business.  Thus you can see that we have been complaining since the promulgation of the so-called Vets First Policy that never was held True at VA.  The letter is attached and I personally delivered it to Secretary Peake at the National Press Club but VA simply "blew it of!"

 

An e-mail, from Aldevra is directly below, PLEASE read it carefully and PLEASE turn up the sound on the attached Audio File to hear VA Officials clearly state that they are “pushing back” against this GAO Decision fort Veterans First. 

 

Sincerely and Godspeed,

 

Wayne

 

Wayne M. Gatewood, Jr. USMC (Ret)

President/CEO

Quality Support, Inc.

A Service Disabled Veteran and Minority Owned-Small Business

8201 Corporate Drive, Suite 220

Landover, MD 20785

301-459-3777 EXT 101 - Fax 301-459-6961

www.qualitysupport.com

 

"The willingness with which our young people are likely to serve in any war, no matter how justified, shall be directly proportional as to how they perceive the Veterans of earlier wars were treated and appreciated by their Nation." - George Washington

---------------------------------------------------------------

From: Rodney Marshall [mailto:rodney@aldevra.com]  (provided to you with Rodney's Permission!)

To: rodney@aldevra.com

Subject: VA "Pushing Back" Against Vets 1st

 

Recap: On October 11, 2011, GAO found that VA was violating law and NOT considering veteran small businesses first at VA, particularly as it relates to federal supply schedules (read decision here http://www.gao.gov/decisions/bidpro/405271.htm).

VA Response: VA has decided to "push back." This has been confirmed in at least two ways:

1) Listen (attached audio file) to Carole O'Brien, VA director of FSS, and Maurice C. Stewart, VA associate deputy assistant secretary -- Acquisition Logistics Programs and Policy, as they addressed the Aldevra GAO decision during the VA Supplier Relationship Transformation Forum in Chicago on Wednesday, October 19, 2011.

a. Carole O'Brien -- "...some things in the decision that we do not believe are legally sufficient, legally correct so we as an organization are pushing back on that...No direct impact on us at this point..."

b. Maurice Stewart -- "Acquisition professionals will continue to use the FSS schedule as required as much as possible....we'll push back... and ultimately this will be a decision made by higher courts...We're continuing to operate as we operate."

2) Read VA's response after SDVOSB reporter Hardy Stone (Bluepoint Productions) asked for a copy of the alleged memo VA sent to contracting officers telling them to IGNORE the GAO decision and continue to put veteran small businesses in the LAST category...

From: "Josephine Schuda" <josephine.schuda@va.gov> [VA public affairs specialist]

To: bluepoint1@comcast.net

Sent: Wednesday, October 19, 2011 11:26:02 AM

Subject: refusal to comply memo

Hardy: I'm sorry, but Jan Frye's memo was internal guidance only and, as such, will not be shared outside of VA's contracting community.

Jo

What now? Since GAO recommended corrective action, the VA is required to report to the Comptroller General if they do not fully implement the recommendation within 60 days. The Comptroller General, in turn, reports this to Congress. Mr. Stewart stated that ultimately this decision will be made by a higher court. In fact, the US Court of Federal Claims came to the same conclusion as GAO in the Angelica decision -- Congress and the President clearly want veteran small businesses to be considered FIRST at VA.

Where is our advocate and VA OSDBU? I don’t know. We have contacted him and haven’t heard back.

Your Response:

· Show your support by signing the White House petition http://wh.gov/TxV

· E-mail, Facebook, Tweet, Link, mail this message/key facts to your contacts

· Contact your elected officials; Here’s a helpful link http://www.usa.gov/Contact/Elected.shtml

· If you’re a veteran owned small business owner, protest any solicitation or award where SDVOSBs/VOSBs were not considered first. The group Lima Charlie http://lima-charlie.org/ has offered to help veterans determine eligibility for this process.

· If you represent or belong to a veteran service organization, let me know where you stand. I’ve started a list.

Yours in the Struggle,

Rodney Marshall, President & CEO

Aldevra

6536 Marlow St.

Portage, MI 49024

wk 269-350-1337

cell 269-720-0515

fax 269-327-7392

e-mail rodney@aldevra.com

www.aldevra.com

CAGE Code: 5EEK3

CVE Verified Service Disabled Veteran Owned Small Business Certified Minority Owned Enterprise Small Disadvantaged Business

Confidential notice: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

---------------------------------------------------------------------------

 

Wayne M. Gatewood, Jr. USMC (Ret)

President/CEO

Quality Support, Inc.

A Service Disabled Veteran and Minority Owned-Small Business

8201 Corporate Drive, Suite 220

Landover, MD 20785

301-459-3777 EXT 101   -   Fax 301-459-6961

www.qualitysupport.com